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February 03, 2011

My friend and former colleague Angela Onwuachi-Willig is one of the nine finalists for three spots on the Iowa Supreme Court. Over at Concurring Opinions, Kaimipono Wenger provides "[a] few reasons) why [she] should be appointed to the Iowa Supreme Court," but it really reads like "a few reasons why Kaimipono Wenger thinks he would be happy if she is appointed to the Iowa Supreme Court":

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist. I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.

However, elections matter. Culver lost his bid for re-election to Terry Branstad, a Republican former governor of Iowa from 1982 to 1998. I wasn't in Iowa at the time, but my sense from listening to my former colleagues was that he was kind of a moderate Republican. Branstad is theonly audience to whom arguments about Angela Onwuachi-Willig's merits matter.

Is there reason to believe that Branstad would be positively influenced by her support for same-sex marriage -- including her signing the pro-same-sex marriage amicus brief in Varnum? Perhaps not, considering that Branstad said recently, "What the people of Iowa want is an opportunity to vote on marriage defined as one man and one woman."

For similar reasons, I do not think that Branstad will be at all moved to appoint her as a way to respond to those who booted the three Justices for supporting Varnum. Nor does it seem like a good way to advocate for her by noting that she is committed "to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy." Antiracist legal philosophy? It strikes me that denying any room for reasonable minds, as Professor Wenger does, to disagree on legal issues by characterizing anyone who disagrees as racist is not a persuasive tactic, especially when you're calling out some (not all) of Branstad's supporters -- and hence, in a sense, Branstad -- as racist.

Moreover, while Professor Wenger is free himself to characterize the opposition to the Varnumdecision as "a homophobic right-wing smear campaign," the danger is that readers may assume that this accurately describes how Professor Onwuachi-Willig would herself characterize that opposition. Based in general on her scholarly approach and the way that she and I have chatted about various subjects over the years, I do not see her using such inflammatory and imprecise terms.

Indeed, as I will explain shortly, Angela Onwuachi-Willig's legal scholarship -- and indeed, her general legal philosophy -- are far more nuanced and independent than the near-caricature depicted in Professor Wenger's post. Arguing for Branstad to appoint someone who is committed "to a principled and progressive feminist and antiracist legal philosophy" is sort of like arguing to Barack Obama that he should nominate John Yoo to the Supreme Court because Professor Yoo is committed "to a principle of a robust executive with broad, unfettered discretion to best protect the public." I mean, that's an exaggeration, but not too much of one.

Here are my reasons for why I think Governor Branstad should appoint Professor Onwuachi-Willig to the Iowa Supreme Court, based on my having been her colleague and friend for several years:

Personal Qualities: She is smart, hard-working, conscientious, and a delight to have as a colleague, all of which I think are important considerations for a small deliberative body like the Iowa Supreme Court.

Independence: As noted above, Professor Wenger's description of Angela Onwuachi-Willig's views strikes me as something of a distorted caricature, much like those fun house mirrors. One of her articles that garnered a lot of attention is Just Another Brother on the SCT?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, 90 Iowa Law Review 931 (2005), in which she makes the case that Justice Clarence Thomas's conservative legal views are based on a unique, black conservative perspective. Remember that liberals often derided Justice Thomas as a Justice Scalia-clone, or as Scalia's second vote. In this article, Professor Onwuachi-Willig clearly distinguishes herself from that trite -- and inaccurate -- assessment to provide a bold and new way of looking at Justice Thomas:

A review of Justice Thomas's jurisprudence reveals that there is no basis for the claim that Justice Thomas is a “Scalia clone” or “Scalia puppet” and supports the proposition that Justice Thomas has been unfairly subjected to the stereotype of black incompetence. In fact, Justice Thomas has developed his own jurisprudence as a black conservative, directly and indirectly weaving his own “raced” ideologies into his opinions.

In my interactions with Professor Onwuachi-Willig, I haven't always agreed with her conclusions (though I often have). But I've always felt that her conclusions were the product of serious thinking and research. On more than one occasion, she has shown me new ways of thinking about an issue. This independence will be a valuable trait for a Supreme Court Justice.

Judicial Integrity: Presumably, much might be made of her signing the amicus brief in Varnum or her scholarship (particularly as caricatured by Professor Wenger). But I think it is important to keep in mind the difference between being an advocate -- especially as a scholar -- and being a judge. I do not think she would be an activist judge in the mold of, say, the recently thrice-reversed (in one week!) Stephen Reinhardt. This is not to say that one can't divine some inkling of her judicial philosophy from her writings, though Governor Branstad can simply ask her directly about that during his interview of her. The point is that I would use her scholarship primarily to assess her critical thinking and analytical skills, her clarity of writing, and her logical reasoning, all of which are top-notch.

* * *

In short, I think Governor Branstad should focus carefully on Angela Onwuachi-Willig's merits, and not dismiss her based on some inaccurate characterizations (and caricatures). Like most of us, she holds complex and nuanced views on a variety of issues. What is important is that she has the intelligence, work ethic, and integrity to be a Justice on the Iowa Supreme Court.

February 01, 2011

I'd like to make a confession. I'm one of those faculty members who's constantly agitating to reduce the number and size of faculty committees. I tend to think that good administrative staff can take care of a lot of the business that's handled by faculty committees, and I chafe at how (it seems) committee recommendations get reviewed de novo at faculty meetings.

Having never served before on an Admissions Committee, I've thought in the past that this was a prime committee for downsizing and shrinking its mandate. Instead of having faculty members read individual admissions files, why not have a small group of faculty come up with the broad direction of admissions -- i.e., let's try to have a diverse class, let's not have the LSAT median/average/25%/75%/etc. dip below X, let's preference students with 1-2 years work experience, or whatever else the committee thinks makes sense -- and then let the Admissions Director implement those goals. Particularly challenging cases such as very high LSAT but very low GPA, or severe criminal convictions, or the like could be brought on an individual basis to the committee.

Now that I'm actually serving on the Admissions Committee, I must admit that I've changed my stance . . . at least, as regards this particular committee.

For one thing, unlike most other committees, the decisions of the Admissions Committee members are not going to be the subject of any kind of review, de novo or otherwise, by the full faculty. That in itself makes the work considerably more satisfying.

In addition, I've come to see that it's probably not possible to give any meaningful kind of guidance to the admissions director for the midrange files that the committee reads. There are the presumptive admits, whose LSAT/GPA profile is sufficiently high, but those aren't the files that we're reading as a committee. We're looking at files in a fairly tight LSAT/GPA range where it's the rest of the application that really matters. That's not to say that the admissions director couldn't admit the class from this range, but it wouldn't really be through any kind of faculty guidelines.

But the main reason I've come to change my tune regarding having so much faculty involvement on the Admissions Committee is that I've enjoyed reading the application files and having a hand in shaping our incoming class. There are some really neat applicants with amazing stories who seem like they'll be great additions, hopefully here, but presumably somewhere.

Of course, this takes a lot of time -- every week, a few hours to review my share of files, and two hours for the committee meeting. I think it's highly likely that leaving all of the admission decisions in this range of files to the admissions director would produce an entering class of the same LSAT/GPA range and general diversity of backgrounds (not just racial/ethnic, but work experience, college majors, etc.). There would be individual differences, of course, but probably not so much in the aggregate. It's a fair question whether, notwithstanding the points noted above, this is therefore a wise use of faculty time.

Maybe if the question is put starkly as, is it better for a faculty member to spend 5-6 hours a week on admissions matters, or on research or teaching, perhaps it's the latter. But if the question is, given that service commitments exist, is it better for a faculty member to spend 5-6 hours a week on admissions matters, or on, say, the building committee, I would say the former.

Of course, just because I've come to see the value of faculty participation on the admissions committee doesn't mean that I couldn't hack away at committee structures in general . . . .

January 28, 2011

Okay, we have a small parking lot for faculty & staff here at the law school, so I understand why the parking enforcement people are constantly checking permits and giving tickets. Tickets deter unauthorized parking and generate revenue. But when you have someone who doesn't respond to the tickets, something else has to be done.

But really, the boot? That doesn't seem like the best idea in a small parking lot, since that's one fewer space available until the bootee shows up to pay accumulated tickets, etc. It seems to me that towing would be a better step of escalation.

January 26, 2011

Canada’s key to success seems to be actually regulating its law schools and assuring a basic level of high quality across the board. There are only 20 law schools in Canada, which means that (gasp) not everybody who wants to go can go. Yet despite demand, Canadian law schools also cost less than their American counterparts.

I can't speak to the cost factor, especially since one never knows what law students are actually paying; certainly, not everyone is paying "rack rates."

But as to how Canada has only 20 law schools and is therefore not providing an oversupply of lawyers, Mystal -- and a Canadian career services director -- seem to be overlooking a very important fact: the United States has about 9 times the population of our northern neighbor! Therefore, we would expect to have approximately 9 times as many law schools.

We have 199 ABA-accredited JD programs, so about 10 times as many law schools. I guess you could argue from that that we're slightly over-supplied in law schools, but it looks a lot different than saying, gosh, Canada only has 20 schools and we have 200, wow, we should have so few too.

October 30, 2010

Lots has been written about the letter that Harvard law prof Laurence Tribe sent to President Obama last year, urging the President to pick Elena Kagan and not Sonia Sotomayor or Diane Wood to replace David Souter on the Supreme Court. I found the following assessment in the letter quite striking:

Diane Wood -- who is more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan, who is even smarter -- would be likely to serve nearly a decade less than Elena . . . .

It's safe to say that being smart is a valuable trait for a Supreme Court justice. It's less clear that additional units of smartness continue to add value once you're beyond a certain level of smartness, which one would have to stipulate that Sotomayor, Wood, and Kagan all surpass easily. It seems unlikely that additional smartness is of increasing linear value, and even less likely that it's of increasing exponential or geometric value.

But putting that aside, I am curious as to the methodology that one would employ to determine who is smarter between Kagan and Sotomayor, or Wood and Sotomayor, or Wood and Kagan. This isn't like asking, "Who is the best baseball player today?," for which there at least are numerous relevant statistics that can get crunched into a single stat like "wins above replacement value" -- which is still subject to debate about its validity. How "smart" someone is, is much more subjective.

It would be one thing for Tribe to opine on his perception of the relative intelligence between Kagan and, say, Kathleen Sullivan (also mentioned in his letter), since both were his students at one point. Even then, one has to wonder whether being a student's professor provides enough context to assess how "smart" a person is, but at least there's some comparative basis there. Although a statement like "X is the best student that I've seen in my N years of teaching" has some possibility of error as well, I'm at least using the same basis for measuring the students in the comparison.

Sotomayor, however, went to Yale for law school, not Harvard; and Wood went to Texas for law school. Therefore, Tribe didn't have either one for a student, and can't compare them on that basis with Kagan. Both have been judges for a long time, with many judicial opinions, and as a constitutional law expert, Tribe is certainly capable of evaluating the quality of those opinions. And he no doubt has had interaction with the two of them in various fora. But is that really enough context to make a sweeping statement along the lines of who is more powerful intellectually?

To be sure, I'm not suggesting that one can opine about one's perception of relative intelligence only when you have seen the candidates in the exact same context. When I was clerking, I started to develop a sense of which judges I thought were pretty sharp even though I wasn't clerking for them. But that's making a broad distinction, in the sense of sharp or not sharp, and not something as fine-tuned as "the #1 smartest judge on the 9th Circuit"; "the #2 smartest judge on the 9th Circuit"; and so on.

For what it's worth, elsewhere in the letter, Tribe does raise a number of points in Kagan's favor -- "an appealing public persona," "a well-grounded image of justice as fairness and of law as common sense"; "dynamic personality"; and "extraordinary diplomatic gifts for inspiring confidence"; and "best Harvard dean" in Tribe's time at the law school. The letter seems more persuasive and sensible when arguing these positive traits of Elena Kagan than when engaging in the esoteric and probably meaningless exercise of whether supersmart person #1 is smarter than supersmart person #2.

August 16, 2010

Thanks to "burned" CIA operative Michael Weston (from Burn Notice), I've discovered a new use for old casebooks! In a recent episode, Weston had to go into prison to protect an inmate from being killed. Knowing that the bad guys were heading over with shivs, Weston took his client into the law library, grabbed a bunch of old law reporters, and stripped the covers off. He then explained that the hardcovers weren't strong enough to stop a bullet from a gun, but they were plenty strong enough to deflect small knives.

So, if you've finished a course and you can't sell the casebook because a new edition has just come out, well, think about it -- homemade body armor!

June 22, 2010

The way I see it, as long as a school uses a fairly conventional grading scale (ie., 4.0 or ABCDF) and it discloses the mean grade on the curve, especially if it also discloses some class rank info, then grade inflation isn't likely to do much. Employers who care about grades enough to set cutoffs like top 10% or top 15% aren't going to be affected much by having a 3.0 or 3.3 mean, since they're going to be looking at 3.7+ GPAs either way.

On the other hand, if a school uses an arbitrary grade scale that looks close to a conventional grading scale but with slightly lower absolutes (i.e., max of 3.8 or 95), then grade inflation probably does help students. Back when I started teaching at Iowa, the scale was 58-92, with 85 and above equivalent to an A. However, students found that employers who weren't familiar with Iowa would look at, say, an 87 average and conclude that the student was a B+ student. It's hard to blame employers for thinking that way! Eventually, the law school abandoned that scale and went to a convention 4.3 max scale with a median grade of 3.3.

If you're going to come up with an obscure scale, do what Chicago does (127-155 or something like that). Or better yet, skew it so that it helps your student body -- make it a 70-110 scale, with 100-110 = A, 90-100 = B, 80-90 = C . . . .

May 18, 2010

Since graduating from law school, I've lived in four states: California, Oklahoma, Iowa, and now Oregon. I passed the California bar exam in 1995 (my admission year is 1996 because I put off getting admitted so as to avoid paying unnecessary bar dues) and got admitted to Iowa by motion in 2003. I couldn't get admitted to Oklahoma by motion because Oklahoma didn't have reciprocity with California (and I hadn't been practicing for long enough anyway), but I did get admitted to the Tenth Circuit bar while I was out there.

Now that I'm in Oregon for the long haul, I've been wondering if I should get admitted to the Oregon Bar. Like most states (but not Iowa), Oregon does not have reciprocity with California -- pretty much because California is obnoxious about not allowing anyone to get admitted by motion. But it turns out that Oregon has a law teacher admission that's about as good: as long as you've been admitted to another state's bar, a full-time law professor at one of the three Oregon law schools can get admitted without taking the exam after teaching for one year. I'm about to complete my first year (I consider it done when I turn in grades), so I could do this.

I'm not sure why I would do this, although I think I might like to take on a Ninth Circuit federal criminal appeal or habeas petition pro bono if I could work out legal malpractice liability issues, and I'd either need to get admitted to Oregon or reactivate my California membership for my Ninth Circuit admission to be valid.

On the downside, the law prof admission still requires paying the hefty $850 application fee; and active dues in Oregon are even MORE expensive than those in California, which I didn't think was possible!

April 01, 2010

A legal writing applicant's lawsuit against my former employer, the University of Iowa College of Law, made quite a splash over a year ago, when she alleged that she had not been hired for a Legal Analysis, Writing, and Research instructor position due to political bias. (She apparently is very conservative, and her complaint noted that something like 46 of the 50 faculty members were registered Democrats, and only one was a registered Republican.)

"[Dean Carolyn] Jones did not allow [Theresa] Wagner's beliefs to influence her decision, the faculty committee did not base its recommendation on Wagner's beliefs, and Wagner's contrary view is not supported by admissible, competent, material evidence concerning what the faculty and Jones considered in not hiring Wagner for the (Legal Analysis, Writing and Research) position," according to [Judge] Wolle's ruling.

Since I was one of the faculty members at the time Wagner applied, I suppose it means that I, too, am vindicated by this ruling!